"The European Parliament, in Article 6 of its declaration of Fundamental Rights and Freedoms, which codifies the Community's legal commitment to this field, has affirmed that everyone has the right to respect and protection of their identity. Sexual orientation is a fundamental dimension of human identity."* Final Paper for the Legal Theory and Legal Philosophy Course, May 2002
To Prof. dr. Wibren van der Burg
In this paper I shall present a possible solution for the same-sex marriage debate. For the analysis, I shall deal with the most important aspects of the life of same-sex families important for this legal context, such as: the question of the age of consent, the possibility to get married or to be registered as a domestic relationship. I consider it important to establish why marriage is not a purely private matter. Sketching the recent situation I shall discuss how is it possible for the tools of law to transform/translate the shift in the social acceptance towards same-sex relationships into legal language and concrete provisions. I will examine the three possible ways of legal reaction to same-sex marriages, namely the traditional, the functional, and the legislative approach. Finally, I shall come to my final point: why in my opinion a distinction only between the names of the different categories to be introduced for homosexual and heterosexual relationships recognized and protected by the State can be justified.
Every social entity receives some kind of legal regulation whatsoever. The features of the regulation are determined by the moral opinion represented by the majority of the society. Although the European morals are still in bigger part ruled by the general christian approach, European countries more and more have to face a shift of the abovementioned social majority opinion towards one based on multicultural grounds. The ethnic and religious diversity brings moral diversity with itself.[1] But immigrants are not the only factor bringing "the wind of change". As education becomes widespread and general for all classes of society, every group and organization of citizens have the chance to form their own priorities regarding the policies of the government and join their forces to lobby for these aims to reach.
People with a different - homosexual - sexual orientation form such a group as well.
The way of an individual to her or his "coming out"[2] is usually very hard. Such as it is for the homosexual - lesbian and gay - community as a whole to make their voice heard in such a huge formation as the European Community.
Despite the EC's good traditions of the respect for human rights and the provisions of the constitutions of the Member States, there are still some tasks remaining regarding the equalization of gays and lesbians, though in accordance with the legal principles of the Community, the rights of the people with a homosexual orientation should be asserted and respected in their entirety.[3] The totality of social rights would mean:
- the right to conduct homosexual activity at the same age as it is established for heterosexual activity (therefore, the age of consent should not be determined upon a discriminative basis);
- the right to marry or to be respected as a couple by law;
- the right to have and raise a child; and
- the enjoyment of all social benefits linked to marriage.
The question is: how these aims of lesbian and gay groups can be achieved in the EU? In other words, how can a compromise be made between those reluctant to leave the old structures of family law behind and the homosexual platform?
Before it would be possible to deal with the question of families in a homosexual context, it is essential to discuss the penal law aspect. Homosexual partners must have the right to conduct their sex life in accordance with their desires without being judged to be subject to prosecution.[4] Throughout history, there has been certain times and certain territories when and where homosexual behaviour and possibly also same-sex marriage was accepted by the society.[5]
In many countries, there is still an arbitrary distinction between the age of consent for the sexual activities of hetero- and homosexuals, establishing a higher age for conducting homosexual activity. This can easily be seen as hypocracy: the State doesn't prohibit these activities in general, but only under a certain age, which is on the other hand set up on a discriminative basis, namely on the unjustified presumption, that homosexual behaviour and sexual orientation is "more harmful" for juveniles than the "normal" sexual orientation is. Thanks to the efforts of lesbian and gay associations, and the discretion
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of governments, the difference between the age of consent was abolished in some countries, for instance in Great Britain.[6]
With legal measures regarding the equal rights of homosexuals, the European Parliament took the lead in 1984 with the passing of the Resolution on Sexual Discrimination at the Workplace.[7] In this instrument, the Parliament includes some measures pursuant to homosexuals too. The next step was the Commission Recommendation on the Protection of the Dignity of Women and Men at Work and annexed to it, a Code of Practice on Measures to Combat Sexual Harassment.[8] This code explicitly mentions homosexuals amonst those employees particularly vulnerable to sexual harassment.
Despite of the fact that these measures were taken a long time ago, there is still no uniform family policy for the countries of the EU. As Article 9 of the Charter of Fundamental Rights of the European Union reads: "The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights." In my opinion, it would be reasonable to form an overall family policy in the EU, for then there would be no need for taking into account the differences of the member states policies when passing EU legislation. This solution could also strengthen the unity within the EU.
We can say, that the initiatives for the recognition of the social rights of homosexuals began in a traditional and typical EC way: inspired by the economic aspects.
Hence, besides the respect for the EC's human rights traditions and the protection provided by the constitutions of the Member States, the main driving force in this respect remained to be the economic interest of some individuals. Examples for this allegation can be the measures taken towards an achievement of equality at the workplace and the protection against sexual harassment; or if we take a look at another objective, the free movement of individuals, we must declare that they have to be treated not just like plain subjects of the four freedoms of the Community, but in a way that it does correspond with their human dignity. And as we mentioned earlier, sexual orientation is an essential aspect of human identity.[9] Therefore, not only citizens of Member States, but also migrant workers, and their family members have to be given social protection. The most obvious problem here in this respect is the issue of residence permit to the relatives, descendents of the worker.[10] Who qualifies as a member of the worker's family? What's more, what constitutes a family for the definitions of law?
Marriage is a social and religious institution - and a legal one as well. But the legal definition is not l' art pour l'art: from this notion many benefits flow. That is why the argument "governments are not elected to arrange nuptial liaisons, much less to untangle them"[11] is not quite valid, since "on this libertarian view, the terms of marriage contract should be the partners business, not the state's"[12]. Which is correct, getting married belongs to the privacy of the two individuals concerned, but the benefits attached to their marriage is a state matter and the fight for the recognition of same-sex marriages should be fought in cooperation and not in opposition with the State. Therefore it is essential to place the discussion in a legal context.
So what constitutes a family?[13]
The position of the catholic church - which is often referred as the main oppositional argument pursuant to same-sex marriage - is that "marriage exist for the mutual love and support of the spouses and for the procreation and education of children. These two purposes, the unitive and the procreative, are equal and inseparable."[14] We can say that there is a flaw in this reasoning, for taking it seriously, in the cases of infertile heterosexual couples, the possibility of marriage should be denied. On the other hand, it seems that we have to deal with the changes in society concerning the institution of marriage anyway.
"When we talk about the same-sex marriage debate, then, we are also talking about the marriage debate.[15] "We realize that marriage itself has changed.[16] From being an institution governed by men, it has been placed on a radically more egalitarian footing. From being a contract for life, it has developed into a bond that is celebrated twice in many (...) [people's] life. From being a means to bringing up children, it has become primarily a way in which two adults affirm their emotional commitment to one another. From being an institution that buttresses certain previous bonds -family, race, religion, class - it has become, for many, a deep expression of the modern individual's ability to transcend all of those ties in an exercise of radical autonomy."[17]
Thus, the redefinition of marriage seems to be essential.[18]
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Three different approaches can be identified in connection to the notion of family. The 'formal' approach "refers to traditional statutory language when definitions for 'family' or 'spouse' are needed for example in the context of immigration rights, various social benefits, child care and custody, etc. Alternative relationships without ties of blood, adoption or marriage do not qualify under this concept for the rights and advantages reserved to families and spouses."[19]
The 'functional' approach [...] is the answer of progressive courts to changes in society in the face of unchanged legislation. It identifies the formal family tradition as the norm but then recognizes functional similarities in non-traditional relationships when deciding whether or not they should be treated on an equal basis in a certain context. This approach can give rise to some concerns though, since in the absence of statutory regulation there will always be more conservative and more progressive courts, and this uncertainty makes the decision unforesseable and arbitrary for the parties concerned, and can lead to discrimination of same-sex couples. It also puts an extra burden on these alternative families, for they have to prove their eligibility for the benefits in question.
As a variation of this approach, the one of the Hungarian Constitutional Court has to be mentioned. First of all, this body is not a court, in the narrow sense of the word, since it is not a part of the judiciary. Secondly, its decision[20] generated the modification[21] of the Hungarian Civil Code's aspect on constant homosexual partnerships by the legislature, recognizing them to be equal to the one of heterosexuals couples.
Hence, this short cut leads to the 'legislative approach',[22] being the most preferable solution concerning the notion of family. These legislative measures not always cover the institute of marriage itself. Most of the EU member states do not allow same-sex marriages, but many countries have adopted policies accepting same-sex relationships.[23] Such policies are accomplished by creating the category of a so-called "domestic or registered relationships", to grant mostly the same rights[24] as for heterosexuals.
The question arises, is there a reason for making a distinction between these recognized couples and heterosexual married couples? In Germany, there has been a public debate on whether to take this step of recognizing same-sex marriages or not, and finally, concerns about the Constitution granting specific protection to the institution of family hindered the introduction of same-sex marriage. Germany also decided for using the notion of "registered partnership".
"Let us have the same rights as anyone else. (...)
No one is asking you to do anything else,
and if it bothers people, turn your head,
but don't inflict legal disabilities
that carry out that feeling."[25]
"People don't think that the traditional marriage
ought to be demeaned or trivialized by same-sex unions.
If to men want to love each other, go right ahead.
If you want to solemnize your love affair by some ceremony, create one.
But don't take marriage, which for centuries has been a union
between man and woman (...)."[26] Congressman Hyde, House Debate on the Defence of Marriage Act, May 30, 1996,
With this verbal distinction, we can provide equal acceptance and protection to same-sex couples with the recognition of their relationship by the would-be[27] legal category of domestic/registered partnership, and at the same time eliminate concerns about the "trivialization" of marriage.
In my opinion, if these kind of concerns only show a distinction of the two names of two categories, with the members of both having the same rights, and does not prevent same-sex couples enjoy the same legal recognition, I believe that this distinction can be justified, for yes, we are dealing with different people, having a different kind of relationship. I also think that if the traditional view on the institution of marriage in the society concerned is very strong, serious concerns can emerge pursuant to the assumption, that a radical change in the society -the activist introduction of recognized same-sex relationships under the name "marriage" - can turn the progress of tolerance in society the other way round, to revulsion.
"So I think we go beyond the Constitution here. I think we go beyond all these brilliant interpretations here, and I think we have hit feelings, and we've hit what people can handle and what they can't handle, and it's that simple. And no matter how you justify what you say legally or whether it represents the Constitution, I think it breaks down to whether you're able to handle something or whether you're not able to handle something."[28]
That is why, I think that it is always necessary to consider whether the society is ready for such a step - namely to recognize same-sex marriage - or it is wise to first just take one step closer to this institution by introducing a category where the same rights are given to homosexual couples - but the name is different.
I believe that the main driving force concerning the assertion of the entirety of social rights for same-sex relationships - besides the conscience of heterosexuals - is the endurance of the homosexual community. Although they might want to obtain the
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notion of marriage right away, but it is important to see that every real social change is a progress, and that every platform asserting their rights has to get them across to the majority. After all, this is the basic principle that plural democracies are based on: the majority principle. And I have no doubt about it, that the careful protection of the rights of minorities form a true priority for the majority - for we are all different, each and every one of us is a part of a minority within the society, being a woman, being a homosexual, a member of a religious group, etc. As the Charter of Fundamental Rights of the European Union reads: "The Union shall respect cultural, religious and linguistic diversity."[29]
So it might be, that in the future, more and more European countries would introduce same-sex marriages - when they are "ready" to do so. But it is also a possibility, that the two notions mentioned would exist next to each other, it is a question of intern policy of the given country. But there's something that cannot be a matter of internal policy: same-sex couples have to be given the enjoyment of the same rights concerning the discussed family matters. In this respect, a common EU policy is essential.
To sum up: what needs to be emphasized here is that we have to give the same social, economical rights to same-sex couples, but at the same time, we don't have to pretend that these relationships are the same as homosexuals'. They are per definitionem different.[30] In my view, giving the same protection under a different name of legal category should satisfy both the pro and con advocates of the same-sex marriage debate. The aim of this policy is to represent the notion of "all different - all equal".
In most of the countries this is the last right to obtain for homosexual couples. The possibility that the two partners can jointly adopt a baby is of high importance, since if only one of them succeeds with an adoption alone, his partner would not be legally responsible for the child. This means that in case of the death of the partner responsible for the baby, she or he can be taken away by the authorities from the other parent, and may end up in an institution.
Of course living (and staying) in a loving family surrounding of two parents of the same sex is absolutely a better situation for a child than to live in an institution.
Those who oppose the chance of adoption for same-sex couples assume that homosexuals would be of "bad influence" to the child. In some cases they also tend to identify this wish of adopting a child with pedofilism. It essential to point out that adequate information on the lifestyles of homosexuals reach the public. Films, art festivals, teachers and human rights activists can play an important role in this.
It must be stressed that
"There are forms of homosexual behaviour
which are undesirable in any society but this is
equally true for certain forms of heterosexual behaviour
(for example rape, seduction of children, incest, etc.)."[31]
We shouldn't discriminate those people with a different sexual orientation on the ground that they would "raise the child to be homosexual". This assumption is invalid because if once we established that a specific person - who otherwise happens to be a homosexual - is eligible to raise a child, then at the same time we declared that this person is a responsible personality. In my view it's clear that since a responsible parent wants always the best for her or his child, being a homosexual, she or he wouldn't even try to promote the child's homosexual orientation, for he or she very well knows the struggle it often includes.[32]
What is more, discussing the question whether homosexuality is a learned conduct or inherited is also of no use, for we can say that
"It is submitted that homosexuality should be
considered as part of someone's personality
like blue eyes or left handedness.
It is not helpful to look for the reasons
of homosexuality when considering how
lesbians and gay men should be treated."[33]
The basic feature of the state of lesbian and gay rights is the possibility of marriage for homosexual couples. This is also the notion, which other rights and issues derive from, such as social benefits for the couple and for the spouses one by one, inheritance rights and the right to joint adoption.
The recent situation in most of the countries - except for the Netherlands where homosexual married couples enjoy exactly the same rights - is that although same sex couples have their relationship registered by the state and also enjoy many benefits pursuant to this registration, but still, the catalogue of rights is not complete[34] and the notion used is
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not marriage, in many cases for formal concerns about using the same definition as for heterosexual marriage, claiming that this would lead to the "trivialization of marriage".
In my view, a possible solution for easing the tension of the same sex marriage debate would be to introduce a new category of registered or domestic relationship, one that includes all the social and family rights as of those provided for heterosexual couples. Through this way, there would no longer be a discriminative treatment towards homosexuals in this respect, and worries about the institution of marriage would be eliminated as well.
Maybe it is only about time that also the notion of marriage will be provided for same sex couples, if the society's concerns become less harsh. In my opinion, three conditions have to be fulfilled, to facilitate this change: constant endurance of the homosexual community, progressive evolution of the tolerance and solidarity in the societies of the countries concerned, and better and ongoing flow of adequate information about the lives of homosexual persons and couples. ■
NOTES
* Andrew Clapham and J. H. H. Weiler: A Call for a Nine Point Community Action Plan to Combat Discrimination Against Lesbians and Gay Men, in: Homosexuality: A European Community Issue, p. 397.
[1] Article 22 of the Charter of Fundamental Rights of the European Union (CFREU) reads: "The Union shall respect cultural, religious and linguistic diversity." Ádám, Antal: Az alkotmányi értékek fejlődési irányairól. (On the Directions of Development of Constitutional Values) Jura n° 1. 2002
[2] Contrary to countries with a well-established and constant civil society
- like most western European countries are
- in those in which pluralism in society and in politics has just been introduced, like in Hungary, for instance, it is extremely rare that somebody confessedly identifies herself or himself with having a homosexual orientation.
[3] Article 12 of the EC Treaty outlaws any discrimination on the grounds of nationality. Under the Treaty of Amsterdam a new Article 13 has been written into the EC Treaty naming sexual orientation as a ground for discrimination.
The provisions of the new Treaty include not only discrimination based on nationality but also discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. For the new developments in Hungary, c.f. the decision of the Constitutional Court 37/2002. (IX. 4.). A comprehensive look is taken at the subject of homosexuals' rights in Fundamentum, 2-3./2002.
[4] In the wording of the
Charter of Fundamental Rights of the European Union (2000/C 364/01): Article 7 "Everyone has the right to respect for his or her private and family life, home and communications." [Emphasis added.]
[5] For instance, "[i]n case of a wife's death, berdaches [homosexual men] will be praised for stepping in to rescue the family. Among the Zapotecs a famous case occurred when a man's wife died while their several children were still young. The man married a muxe who became a substitute mother. The berdache cooked, laundered clothes, and did the shopping for the family. Other Zapotecs admired the muxe greatly for the sacrifices he made, saying 'every one of those children got an education and was sent to school clean and well-fed'. He and the widower lived together as a respected couple until the muxe's death many years later. Zapotecs judged him by his sacrifices for the children, rather than by his sexual behaviour (.)".
[6] Where the age of consent is equally 16 years.
[7] OJ 1984 C 104/45
[8] OJ 1992 L 49/1.
[9] See footnote marked with *.
[10] As things stand now, which members of a Union citizen's family are entitled to freedom of movement irrespective of nationality varies according to the category to which the Union citizen they are dependent on belongs. For instance, in the case of workers, Article 10(1) of Regulation 1612/6812 gives the right of residence to the spouse, descendants who are minors or dependants and to dependent relatives in the ascending line.
[11] Joe Rogaly in the Financial Times, cited in Let Them Wed, Economist, January 6, 1996, in: Andrew Sullivan: SameSex Marriage: Pro and Con
- a reader, Vintage Books, New York, 1997., p. 181.
[12] Let Them Wed, Economist, id.
[13] According to the Webster's New Collegiate Dictionary, a family is "the basic unit in society having as its nucleus two or more adults living together and cooperating in the care and rearing of their own or adopted children.
[14] Statement on Same-sex Marriage, by Rev. Joseph L. Charron and Rev. William S. Skylstad, in: Andrew Sullivan, p. 52.
[15] Introduction to the book Same-sex Marriage: Pro and Con, by Andrew Sullivan, p. XIX.
[16] "The [notion of] 'family group' has been recently undergoing rapid change and more and more people, often with children, are forming "de facto" couples. " Commission of the European Communities: Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 23.5.2001
[17] Id.
[18] Similarly to the acceptance of same-sex marriages, the same problems emerge in relation to the controversies about homosexual teachers. In this discussion, "the state would probably argue that an increase in the incidence and the acceptability of homosexuality would pose a threat to the institution of marriage and family - institutions protected in many other contexts. The flaw in this argument is not that the goal is invalid, but that the means are unaccountably underinclusive. Spinsters, bachelors, and divorced people are permitted to teach without challange, and even unwed mothers and single pregnant women have won constitutional protection for their right to teach, despite their possible encouragement of untraditional lifestyles. [...]
The difference between divorced and gay teachers is not that the latter pose a greater threat to the institutions of marriage, but that homosexuality is today considered immoral, just as divorce once was." (The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harvard Law Review (1985) 1285, at 1306-1308, footnote omitted. Cited by Frank Emmert, in his abovementioned article, p. 383. [Emphasis added])
[19] Frank Emmert, p. 387.
[20] Decision of the Constitutional Court No. 14 of 1995., recognizing the "emotional, sexual and economic community" of homosexuals to be worthy of the protection of the state, just like constant heterosexual partnerships out of wedlock, and therefore making it possible to claim certain social benefits otherwise reserved to married couples.
[21] The decisions of the Constitutional Court have the legal force of erga omnes.and "(d) 'Family members' means, in so far as the family already existed in the country of origin, the following members of the applicant's family: (i) the spouse or unmarried partner in a stable relationship, if the legislation of the Member State where the application has been lodged or is being examined treatsunmarried couples in the same way as married couples;"[Commission of the European Communities: Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, 3.4.2001]
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[23] For instance Sweden, Denmark, Germany, etc.
[24] In most of the countries concerned, adoption by the same-sex couple is not permitted.
[25] Barney Frank, in a debate in the House Judiciary Committee, June 12, 1996., cited Same-Sex Marriage..., p. 221. in: Sullivan: id., p. 225.
[27] Attention should be made to the difference of this notion of registered partnership and the one with the same name used now in many countries. Of course we're still dealing with providing the same rights that are given to married heterosexual couples (that is to say to include the right to adoption for the couple).
[28] Sonny Bono, in a debate in the House Judiciary Committee, June 12, 1996., cited Same-Sex Marriage..., p. 222.
[29] Article 22
[30] What is more, even members of the homosexual community have different views on the possibility of same-sex marriages: " [This] community [of homosexuals] consists of an enormous number of people of every conceivable age, race, religion, lifestyle, income and opinion. It is of course impossible to convince such a large and diverse group of people to throw their political weight behind any one issue. For example, some argue that regardless of any individual's desire to get married, the community as a whole should support official recognition of their right to do so. On the other hand, there are those who decry marriage as a sexist and patriarchal institution that should be avoided at all costs. Still others are enjoying a higher level of economic prosperity (.) and don't feel constrained in any way by a lack of marriage rights. Another group doesn't want to risk repercussions while perhaps another group just doesn't care one way or the other." Same-Sex Marriage: A History of the Law, found at: http://www.nolo.com/lawcenter/ency/article.cfm/objectID/6DF0766E-C4A3-4952-A542F5997196E8B5/catID/64C2C325-5DAF-4BC8-B4761409BA0187C3 Also, surveys show that homosexual couples are less likely to "get married" then heterosexuals: in Denmark, a form of homosexual marriage has been legal since 1989. Through 1995, less than 5% of Danish homosexuals had gotten married, and 28% of these marriages had already ended in divorce or death. Source: Wockner, R. Advocate, Issue 726, February 4, 1997, 26. in: Same-Sex Marriage: Till Death Do Us Part? By Dr. Paul Cameron. Found at: http://www.familyresearchinst.org/FRI_EduPamphlet7.html
[31] Frank Emmert, id., p. 382.
[32] See footnote 2.
[33] Frank Emmert, id., p. 382.
[34] The right to joint adoption of a child is not provided.
Lábjegyzetek:
[1] The Author is 4[th] year student of Pécs University Faculty of Law
Visszaugrás
